Free speech protects profit-makers, too
By Robert Garmong
web posted June 16, 2003
For a century after the Civil War, blacks in America's South
were subjected to shameful acts of oppression and violence.
Deprived of voice and vote, they had no choice but to suffer
mutely as they were scurrilously attacked.
Two California-based lawsuits indicate that a new minority
scapegoat has been thrust, disarmed and disenfranchised, into
the crosshairs. No, it is not a racial, ethnic, or religious minority.
In Ayn Rand's words, now validated vividly by California's legal
system, America's new persecuted minority is Big Business.
In the Sacramento federal court hearings began recently in a
lawsuit brought by two tobacco giants, R.J. Reynolds and
Lorillard, in an attempt to defend themselves from state-
sponsored attack ads. Under the terms of a 1988 agreement,
cigarettes in California are subject to a 25-cent tax, and the
proceeds are supposed to be used for "education" about the
health risks of smoking. Instead, for the past year this tobacco-
industry money has gone to fund an advertising smear campaign
in which tobacco executives are portrayed as plotting to lure
children into smoking while openly chuckling that cigarettes are
deadly. California freely admits that the goal of the ads is not to
educate the public, but to vilify the tobacco industry.
As Thomas Jefferson wrote, "to compel a man to furnish
contributions of money for the propagation of opinions which he
disbelieves and abhors, is sinful and tyrannical." How much
worse is it to force a man to support, not only ideas he finds
abhorrent, but personal attacks on his own character?
If any other group of people were forced to finance their own
defamation, they could rely on the aid of every civil-liberties
organization in the country. Yet when the victims being smeared
at their own expense are the executives of a for-profit
corporation, no one objects.
A second California-based case officially declares this open
season on the free-speech rights of businessmen.
Sporting-goods giant Nike, long accused of running so-called
"sweatshops" overseas, responded to the charges in a series of
letters to newspapers and to college presidents and athletic
directors. Nike argued that its overseas workers are paid more
than the local minimum wages, receive reasonable benefits, and
are shielded from the physical abuse common in many Third
World nations.
In a case now before the U.S. Supreme Court, Marc Kasky
brought suit under California's false advertising law, claiming that
Nike's arguments were factual misrepresentations. The fine
sought by Mr. Kasky is equal to Nike's entire profit from the
state of California--which would be a crippling blow to a
company already suffering from the weak economy.
Nike responded that its letters were political speech, protected
by the First Amendment. Last year California's high court ruled
that the letters are not protected by the First Amendment
because they constitute "commercial speech"--even though they
address a political controversy and don't specifically mention any
of Nike's products. The California court explained that its ruling
merely requires that when a company "makes factual
misrepresentations about its own products or its own operations,
it must speak truthfully." Yet Nike's critics, including Mr. Kasky,
are under no such legal obligation to tell the truth and do not
have to fear any penalty if they are caught fabricating facts to use
against Nike--because, the California court held, their speech is
noncommercial.
Under this standard, for-profit corporations are subject to
special penalties and denied the protection of free speech
because they are for-profit. To engage in commerce, according
to this argument, is to waive one's constitutional rights. There
could be no clearer expression of anti-business bigotry.
Imagine a debate in which one side is free to distort the truth or
to invent outright fabrications, and to have those attacks paid for
by the very people they slander--while its opponents are subject
to bankrupting fines if any of their factual claims are judged by a
jury to be incorrect. Such is the view of "free speech" being
promoted today in California's courts.
It is significant that these cases arise in California, a state with a
reputation for being "liberal." The political left has long enjoyed
an undeserved reputation as a defender of free speech--but this
supposed advocacy of free speech extends only to those who
share the left's blind hatred of profit-making and commerce.
During the age of legalized discrimination, America's courts were
sometimes tacit, sometimes overt participants in the persecution
of minorities. Let us hope the courts now will reject the notion of
separate and unequal constitutional protection for today's
persecuted minority, Big Business.
Robert Garmong, Ph.D. in philosophy, is a writer for the Ayn
Rand Institute (www.aynrand.org/medialink) in Irvine, CA. The
Institute promotes Objectivism, the philosophy of Ayn Rand,
author of Atlas Shrugged and The Fountainhead. Send
comments to reaction@aynrand.org. (c) 2003 Ayn Rand (r)
Institute.
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